From the December 01, 2006 issue of Futures Magazine • Subscribe!

TT off the Mark(man)

A Markman ruling on Trading Technologies’ (TT) patents as they relate to the dispute between TT and several technology and brokerage firms (including eSpeed, CQG, GL Consultants and Rosenthal Collins Group) was announced on Oct. 31 and the defendants are claiming victory.

“The litigation process is not complete, but the court clearly supported our view on the key defined term that it recognized as the seminal issue in the case, which is defining the term ‘static,’” says Paul Saltzman, eSpeed’s chief operations officer.

Despite Saltzman’s qualification, eSpeed sent out a press release Nov. 6 claiming the ruling “removed any uncertainty regarding our products.”

TT, in a release challenged eSpeed’s conclusion, stating, “The court did not rule on the issue of whether eSpeed or any other defendant is infringing on the patents. TT remains very confident in its case and that the court will find that eSpeed’s products infringe.”

The judge noted that at the center of the fight is whether TT’s patents cover automatic recentering of the static ladder. TT argued it does and the defendants, whose software automatically recenters its price display, argued it doesn’t. And although the court had previously aligned itself with TT’s view, in the Markman ruling it stated, “We now choose to alter our initial construction, construing common static price axis as a line comprising price levels that do not change positions unless a manual recentering command is received.”

Geoff Baker, attorney for Rosenthal Collins Group, said that based on the Markman order, “It will be difficult for TT to prove infringement.” He says the ruling makes it more likely that TT’s patents will be ruled invalid or unenforceable. “We don’t have a static ladder based on the judge’s definition.”

“There has now been a construction in a hotly debated issue — it means what it says,” noted a patent attorney, who expects defendants to file for a summary judgment of non-infringement. The attorney adds he also expects any decision to be appealed, which would leave open an alternate construction of the term ‘static.’

Saltzman adds, “By lifting this cloud of uncertainty and making it clear that our product offering falls outside the scope of the patent, that is going to free us up to be a true global competitor to TT and provide the marketplace with the choice that it wants.”

While Baker agrees the big blow to TT was the definition of static, he added the judges ruling on ‘Order entry region’ and ‘Single action of a user input device’ also dented TTs case. “The Judge’s ruling made it more likely that there will be more prior art that could invalidate TT’s patents.”

The Markman ruling does not address infringement, it simply defines the parameters of the patent, and although the defendants call it a victory, they don’t expect the case to end here. “It doesn’t appear to me that Harris [Brumfield] is willing to concede defeat,” Bakes says.

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